When Italy became the final country in Western Europe to recognize the rights of same-sex couples on Wednesday, the reaction broke down along predictable lines. The Italian LGBTQ advocacy group Arcigay objected that the new civil-union status the law created was an unacceptable second-best to marriage, especially since adoption is still not permitted. Those on the right, echoing the influential view of the Catholic Church, complained that the law was still too close to marriage.
By creating the civil union, Italy is moving in the same direction other Western European countries did—just far more slowly. In the Netherlands, France, the United Kingdom, and Scandinavia, variously named laws (domestic partnerships, civil unions, registered partnerships) began by granting an expanding cluster of rights short of marriage to same-sex partners. Crucially, though, these laws generally recognized the couples’ rights qua couple only, not their legal right to parent. Bans on same-sex adoptions and on surrogacy (which were sometimes part of complete bans on the practice) remained in place, and they were only lifted once a country reached full marriage equality. It’s possible that Italy will follow the same course.
That’s because the logic of recognizing gay- and lesbian-headed families is compelling once the process begins, no matter how that happens. In the United States, adoption and surrogacy came first. And once there were de facto families headed by same-sex couples, it made little sense to withhold the right to marry. Indeed, Justice Anthony Kennedy, who supplied the crucial fifth vote in last year’s gay marriage case, Obergefell v. Hodges, emphasized the dignity of same-sex couples and their children in striking down state bans on same-sex marriage. In Europe, it came to be seen as absurd that gay and lesbian couples were joined in a family unit that didn’t have a place for their children. Either way, full legal equality was reached.
But the situation in Italy may be more complex. The civil union law really amounts to a grudging recognition of the inevitable. Italy isn’t Russia, where same-sex couples risk violence or punitive state action for simply being out. Although the heavy hand of the church kept the closet closed and blocked for longer than could be sustained in other Western European nations, the jig is now up. Enough same-sex couples have come out and are sharing lives together that the call for some kind of consistent, predictable set of legal rules couldn’t be resisted forever.
Yet in Italy, full legal recognition of the family may be far in the distance. There’s still a strong view that there’s only one way to create a family—the old-fashioned, procreative way, by a committed opposite-sex couple in a marital relationship. Adoptions by opposite-sex couples are a concession to reality, but the visible defiance of the marriage/procreation norm manifest in same-sex adoption is apparently a bridge too far. The new law doesn’t even allow a nonbiological partner in a civil union to adopt her partner’s child.
Consistent with its “procreation within marriage” view, Italy also has a complete ban on surrogacy. A terrible case from 2011 reflects a serious commitment to that prohibition. A straight couple used a Russian surrogate mother and got themselves registered as the legal parents before leaving that country. But when Italian authorities discovered that the parents had no biological tie to the child, the baby was removed from the parents’ custody and placed in foster care. In 2015, the European Court of Human Rights ruled that Italy had violated Article 8 of the European Convention on Human Rights, which announces the right to respect for private and family life. (Italy was made to pay 30,000 euros in compensation, but it was not obliged to return the child because of the passage of time and the development of ties to the foster family.)
A country willing to incur the wrath of the ECHR to enforce its surrogacy ban isn’t likely to accommodate same-sex couples in the near future. In fact, at one point during the negotiation over the new law, it was proposed that any same-sex parents wishing to enter into a civil union would have to prove that they had not traveled abroad for surrogacy purposes; failing that, they could have been fined, or even imprisoned, and a judge would have the power to remove their child from their custody. It wasn’t clear how the same-sex parents would prove this negative, and the amendment was rightly slammed as an attempt to turn a rights-creating law into a “criminalizing” one. Although the amendment didn’t pass, the very fact of its having been brought up underscores the resistance to families headed by same-sex parents.
But there’s another part of the law that hasn’t been sufficiently covered. While it does leave committed same-sex couples in a second-class position, it also explicitly recognizes, and protects, both gay and straight couples in cohabitation agreements. That move signals the beginning of a recognition that the law needs to evolve to recognize existing relationships. It also suggests that the church’s influence has limits, and, perhaps, that full marriage equality isn’t far behind.